Opinion
40808/04.
Decided July 21, 2008.
Plaintiff was represented by Steven Wildstein, PC, 98 Cutter Mill Road, Great Neck, New York 11021.
Defendant was represented by Michael A. Cardozo, Corporation Counsel of the City of New York, 350 Jay St., Brooklyn, NY 11201. Herbert Kramer, J.
Plaintiff, who was employed by the Prospect Park Alliance, a not-for-profit organization that furthers the restoration and preservation of Prospect Park, was involved in the task of placing no trespassing signs on the soccer field in the Parade Grounds when the golf cart he was driving struck a goal post. Plaintiff sued the City which owned and maintained the golf cart and this matter came for retrial before this Court. Defendant renewed its request for permission to amend its answer to include a Workers' Compensation defense and this Court ordered additional discovery on the question of "special employee." Discovery having been provided, defendant now formalizes its motion for that relief as well as for summary judgment pursuant to CPLR 3211©. The defendant is hereby granted permission to amend its answer to assert the defense of Workers Compensation as a matter of comity and law, see Cruz v. City of New York, 4 Misc 3d 822(Sup Court, NY Co. 2004) particularly in light of the fact that discovery has been had upon this issue and there is thus no surprise or prejudice.
This matter was originally scheduled for trial in December of 2007. When trial began, the defendant raised the special employment defense and moved in limine to amend its answer to assert the Workers' Compensation bar and dismiss the plaintiff's case or submit the employment issue to the jury and make it the first interrogatory on the verdict sheet. The judge presiding at that trial, permitted the amendment of the answer to include the Workers' Compensation defense and submitted the question of special employment to the jury. The jury was unable to reach a verdict and a mistrial was declared.
Defendant argues that plaintiff — although undisputedly the employee of the Prospect Park Alliance — was a special employee of the City by virtue of the fact that he was working in a park owned and operated by the defendant and driving a vehicle owned and maintained by the defendant and was supervised by a Parks Department employee.Defendant further asserts that its agreement to indemnify the Prospect Park Alliance for acts or omissions committed in the performance of Park functions somehow implies that the defendant assumed control over Prospect Park Alliance personnel.
An employee may be generally employed by one employer and at the same time be specially employed by another and that special employer may raise a Workers' Compensation defense as a bar to claims made by an employee injured in the course of the special employment. "General employment is, however, presumed to continue, and special employment will not be found absent a clear demonstration of surrender of control by the general employer and assumption of control by the special employer'." Bellamy v. Columbia University, 50 AD3d 160, 161 (lst Dept. 2008). "Whether such a complete transfer of control has occurred is ordinarily a fact-sensitive inquiry not amenable to resolution on summary judgment. Only where the defendant is able to demonstrate conclusively that it has assumed exclusive control over the manner, details and ultimate result of the employee's work' is summary adjudication of special employment status and consequent dismissal of any action proper." Id at 162.
To be entitled to summary judgment, a defendant must make a clear demonstration of surrender of control by the general employer and assumption of control by the special employer through the submission of sufficient competent evidence to overcome the presumption of the continuation of the employee's general employment. Sherman v. Reynolds Metals Co., 295 AD2d 843(3d Dept. 2002). "Plaintiff of course has no burden to establish the precise nature of his relationship to the defendant; it [is] rather the defendant's burden to establish that plaintiff was, in essence, its employee . . ." Bellamy v. Columbia University, supra, 50 AD3d at 183, n. 3. In considering whether the defendant has met its burden of demonstrating the surrender of control by the general employer, the question of who controls and directs the manner and details of the employee's work emerges as "a significant and weighty feature." Thompson v. Grumman Aerospace Corp., 78 NY2d 553, 558(1991). See also Marin v. Baldwin Union Free School District., 271 AD2d 579(2d Dept., 2000).
Here, the undisputed facts are that plaintiff was supervised by a Parks Department employee who received a bimonthly stipend from the Prospect Park Alliance for supervising the maintenance and beautification of the park. The no trespassing signs were purchased and paid for by the Prospect Park Alliance which according to its fund-raising letter had undertaken to restore and manage the Parade Ground soccer field and had allocated a maintenance fund of $500,000 a year to safeguard the fields for future generations. Plaintiff applied for and received Workers' Compensation benefits from his employer, the Prospect Park Alliance
The only indicia of control offered by the defendant involve the ownership of the golf cart and the park, an indemnification agreement between the defendant and the plaintiff's employer and the supervision of the plaintiff by a Parks Department employee who himself received a stipend from the Prospect Park Alliance.
The ownership of the golf cart and the park do not establish special employment. The provision of a golf cart for the plaintiff's use and the ownership of the park grounds is not different from the provision of a uniform and a station in the kitchen to a temporary food preparer. Neither of these factors were deemed highly probative of the element of actual control over the" manner,' details' and ultimate result' of the work of the alleged special employee" . . . [demonstrating] . . . a working relationship . . . sufficient in kind and degree' to justify deeming the defendant the plaintiff's employer'." Bellamy v. Columbia University, supra, 50 AD3d at 164. As to the indemnification agreement, wherein the Parks Department agreed to indemnify the Prospect Park Alliance this agreement is not dispositive. "While employers certainly may contract as between themselves to define their business relationships and accomplish their business objectives, an agreement between the employers may not be determinative of the issue of special employment." Thompson v. Grumman Aerospace Corp., supra, 78 NY2d at 559-560. The agreement involved here is not determinative since it does not address the issue of special employment status and thus "does not displace judicial assessment of the employee's actual relationship with [the defendant]." Id. See also Sherman v. Reynolds Metals Co., supra, 295 AD2d at 844.
The City agreed to "defend, indemnify and hold harmless PPA from and against any and all liability, suits, claims, demands, actions, judgment, costs and expenses, for injury to persons . . . or property arising, In whole or in part, from the acts or omissions of PPA, its officers, directors, agents, volunteers and employees in the performance of Park functions'."
As to the third prong of the defendant's argument which involves the supervision of the plaintiff by Andrew Mieux, a Parks Department employee, that too is inconclusive since Mr. Mieux was receiving remuneration in the form of a bimonthly stipend from the Prospect Park Alliance which could well be an indicia of his special employment relationship with the Prospect Park Alliance. Indeed, he was taking direction from Josephine Pittari, the chief of Operations for Prospect Park who was the top manager in charge of the whole operation of the park who was also receiving a stipend from the Prospect Park Alliance.
There are a number of cases that uphold the finding of an employer-employee relationship where the employee received a stipend rather than a regular salary. See Semus v. University of Rochester, 272 AD2d 836(3d Dept. 2000) (doctoral candidate working in a university lab received a bi-weekly stipend from which taxes were withheld together with a tuition waiver and health insurance); Claim of Kelly, 166 AD2d 822(3d Dept. 1990) (youth volunteer in a New York City program received a stipend to cover expenses and a cash or scholarship bonus at the end of 6 months). See also Cuervas v. Americorps, 14 AD3d 911(3d Dept. 2005) (claimant was hired to work in the Red Hook Public Safety Program and paid a bi-monthly stipend amounting to $7,945 annually by the Fund for the City of New York, Inc. [FCNY]; Workers Compensation Board found that she was a general employee of the FCNY).
The nature and purpose of these stipends was explained by Miss Pittari: "It's extra money for the extra duties entailed . . . There are a lot of duties that I do that Park managers don't do in other districts. They compensate me for this extra work . . . for the extra duties I've taken on in Prospect Park." She said that Mieux also received a stipend because "He took on extra work supervising the maintenance and Community Outreach at the Parade Grounds." Plaintiff's supervisor, Mr. Mieux, explained that these stipends were given to supervisors who were involved in supervising work done on the park and playgrounds which may at any time involve cleaning, maintenance, mowing the lawn and garbage removal. According to Mr. Mieux, the only way to differentiate between whether the plaintiff was performing work for the Parks Department or for the Prospect Park Alliance was to determine who was paying whom.
In this case, the Prospect Park Alliance, plaintiff's general employer was paying a full salary to the plaintiff and was providing a bimonthly stipend to his supervisor and indeed to his supervisor's supervisor for the extra work entailed in managing park functions under the auspices the Prospect Park Alliance. It is thus entirely plausible that plaintiff's supervisor, who was taking a stipend from the Prospect Park Alliance, was providing direction to the plaintiff in the performance of tasks in furtherance of the specific goals and directives of the Prospect Park Alliance
Accordingly, the defendant has not established its entitlement to judgment as a matter of law since it has not submitted sufficient competent evidence to demonstrate that plaintiff is a special employee of the defendant since it has not overcome the presumption of the continuation of the plaintiff's general employment with the Prospect Park Alliance. It will be for a jury to decide this fact sensitive issue.
The defendant's motion to amend its answer to add a Workers' Compensation defense is granted and the motion is otherwise denied.
This constitutes the decision and order of the Court.